Constitutional CACOPHONY

Notwithstanding is made for this

Ontario Premier Doug Ford’s decision to shrink Toronto’s city council by roughly half — from 47 wards to the newtargetof25—hasbeen understandably controversial. Toronto’s chronically inefficient and manifestly dysfunctional council could certainly use a reboot. Of course, reasonable people can ask why his government couldn’t have waited until after this election before implementing the changes, rather than disrupting a campaign already in progress. Or why it couldn’t have pursued a less disruptive option (delaying the current vote to provide an adjustment period being an attractive one). But it’s also clear that the less time Ford gives his opponents to invent legal and other manoeuvres to thwart his government’s agenda, the more able he is to actually execute policy without being frustrated by judges, like the one who this week somehow found a way to make the layout of Toronto’s municipal voting boundaries a Charter issue.

The judge in question, Edward P. Belobaba, also somehow saw fit to decide that the government’s motives were impure — born of “pique,” he suggested — despite, as Rex Murphy notes elsewhere on this page, the fact that the motive behind a government’s policy was not what was meant to be on trial.

But it is also true that Ford is doing his cause no favour when he defends his policy by invoking past beefs with former rivals on city council, as he did in the legislature this week.

Still, the premier’s decision to invoke Section 33 of the Charter of Rights and Freedoms — the so-called notwithstanding clause — to enact his proposal, despite the judicial finding against it, is entirely correct. It is long past time for legislatures elected by and responsible to Canadians to reassert their proper place in our governance.

This is not a statement made lightly. The notwithstanding clause is rarely used (this is its first time in Ontario) and is rightly deemed a last-resort option. Its potential for abuse is also why declarations made through it come with a five-year time limit.

But the notwithstanding power exists for a reason, and not just the one cited dismissively by critics of Mr. Ford this week who claim that its only purpose was as an awkward and regrettable compromise to allow former prime minister Pierre Trudeau to patriate our Constitution in 1982 over the objections of wary provincial leaders.

The higher purpose of the clause, as succinctly put by former Alberta cabinet minister and scholar Ted Morton, who also appears elsewhere in these pages, is to serve as “not a check on the Charter, but on judicial misinterpretation of the Charter.” Morton also rightly notes that Sec. 33 “represents a creative middle ground between parliamentary supremacy and judicial supremacy.”

It is, in other words, a made-in-Canada solution intended to protect our rights, including our right to be represented by people we have actually elected.

Not that you’d understand that listening to Ford’s hysterical critics this week, some of whom twisted themselves into knots in essentially asserting that invoking a lawful section of the Canadian Constitution is itself somehow unconstitutional (no, it didn’t make sense to us, either). These critics have entirely missed the point; using the clause may be unusual, but so was the judge’s ruling against Ontario’s intended Bill 5.

As noted above, it’s entirely reasonable to object to Ford’s plan, or complain it has been rushed or that it has an odour of vindictiveness. But, coming from a majority provincial government with clear constitutional powers over the municipalities, the order should unquestionably be accepted as legal and entirely within the Ford government’s jurisdiction. Even the judge conceded the latter.

In striking down Bill 5, Justice Belobaba instead found that the bill violated the free speech rights of voters and their right to effective representation in a democracy, but only because the law was proposed weeks before an election instead of years.

This is a bizarre approach and seems to have been the judge’s attempt to come to his preferred ruling through extraordinary mental manoeuvres. Constitutional scholar Emmett Macfarlane, writing recently in Maclean’s (and no fan of this premier or of Bill 5), argues that “Justice Edward Belobaba appears to have arrived at his ruling using incoherent legal arguments. And though the law is bad and disruptive, and the government’s motives are dubious, none of that makes the law unconstitutional.”

The legal problems in this ruling are clearly serious — and they are exactly the kind of problems the notwithstanding clause seeks to address: providing a reasonable response for democratically elected governments when the Charter is misinterpreted by a judge. Ontario is appealing the ruling and is almost certain to eventually win.

But in the meantime, it is in a bigger hurry than the courts are and so is availing itself of an entirely legal reply to a bizarre and patently flawed legal ruling with meaningful real-world consequences.

Voters in Toronto, and beyond, could certainly be forgiven for having found this entire affair unsightly. But progress is often messy. Canadian legislators have in recent decades yielded far too much authority to the unelected courts, which serve a vital role in our democracy, but are not themselves the expression of it.

In a perfect world, we’d never need worry about bad bills or bizarre judicial rulings. But in the world we actually live in, judges are fallibly human and the notwithstanding clause exists for that reason. Premier Ford was right to invoke it.

IN A PERFECT WORLD, WE’D NEVER NEED WORRY ABOUT BAD BILLS OR BIZARRE JUDICIAL RULINGS.